Goodbar v. Lidikey

• Decision Date: 27 November 1893
• Docket Number: 16,847
• Citation: 35 N.E. 691,136 Ind. 1
• Parties: Goodbar et al. v. Lidikey et al
• Court: Indiana Supreme Court

35 N.E. 691

136 Ind. 1

Goodbar et al. v. Lidikey et al

No. 16,847

Supreme Court of Indiana

November 27, 1893

From the Montgomery Circuit Court.

The judgment is affirmed.

T. E Ballard and E. E. Ballard, for appellants.

P. S Kennedy, S. C. Kennedy, B. Crane and A. B. Anderson, for appellees.

Howard C. J. McCabe, J. took no part in the decision of this case.

OPINION

Howard, C. J.

This was an action brought by appellants to set aside the will of John N. Goodbar, alleging unsoundness of mind, undue execution, fraud, and duress.

There was an answer in general denial, trial by a jury, and judgment for appellees, sustaining the will.

The overruling of appellants' motion for a new trial is assigned as error.

Under the assignment of error, counsel for appellants complain of the action of the court in refusing to give certain instructions to the jury, as requested by appellants, and also in giving certain other instructions over the objections of appellants.

By one item of his will, the testator had devised to his sister, Catharine Hostetter, certain real estate. Evidence was introduced on the trial, by appellants, to show that at the time of making his will the testator had no title to the real estate so devised. Against this evidence appellees introduced the record of the proceedings and judgment in a foreclosure suit against the owner of said land, and the assignment of said judgment to the testator. In rebuttal, the appellants read in evidence a reassignment of the judgment made afterwards by the testator to the said Catharine Hostetter.

As applicable to the evidence thus introduced, the appellants asked the court to give to the jury the following instructions:

"5. The judgment of foreclosure which has been read in evidence can not be considered by you for the purpose of establishing title in the testator to the land described in such judgment.

"6. A devise of land does not give to the devisee any interest in a judgment of foreclosure rendered against the person owning such land.

"7. If you are satisfied, from the evidence, that the testator, John N. Goodbar, signed and executed the written instrument read in evidence, bearing date of April 20, 1891, then I instruct you that such instrument has the effect to transfer to Catharine Hostetter all the right, title and interest which John N. Goodbar had to the judgment of foreclosure described in such instrument."

We think the court properly refused to give these instructions. In so far as the instructions are correct abstract statements of law, they are not applicable to the issues before the court.

The case of Zenor v. Johnson, 107 Ind. 69, 7 N.E. 751, relied upon by counsel, was one involving the ownership of property, and it was correctly held in that case that the court should have construed the written contracts upon which the title to the property depended. Here, however, there is no question of trial of title; the issue before the court was as to the capacity of the testator to make a valid will. The evidence offered as to the title to the Hostetter land was competent only in so far as it went to show the soundness or unsoundness of the mind of the testator; and the court, in the instructions given the jury on this evidence, properly charged them that it was to be considered so far as it illustrated the condition of mind of John N. Goodbar as to soundness or unsoundness at the time he executed the will in suit, and not otherwise.

On the issue of undue influence, appellants asked the court to give the following instruction:

"Where the devisee in a will sustains a confidential relation to the testator at the time of the alleged execution of the will, and where the testator is being cared for by, and is under the protection of, such devisee, and there is in the will a devise of a large amount of property to the devisee sustaining such confidential relation, and if it be shown that, at the time of the alleged execution of the will, the testator's mind was enfeebled by age and disease, even though not to the extent of producing mental unsoundness, then it will devolve upon the devisee to show affirmatively that the will was a free and voluntary act of the testator, and without any improper influence on the part of the devisee."

We think that the rule asked for in this instruction is one rather applicable to contracts or gifts inter vivos than to testamentary devises. But even as to contracts, the instruction seems too broad. It assumes that there was between the testator and one of the devisees a fiduciary relation, as of trustee and beneficiary, principal and agent, attorney and client, guardian and ward, parent and child, physician and patient, pastor and parishioner.

It would, besides, be necessary, in order to establish the fact of undue influence even as to contracts, that the one claimed to have exerted the influence should be shown to have had some advantage of superiority or knowledge over the other, and that such superior influence was exerted in the transaction complained of. In this case, the transaction complained of, the execution of the will, is not shown to have been in any way participated in by the devisee. Certainly one can not be called upon to prove that a transaction with which he had nothing to do was a fair one.

It is undoubtedly the law that when, by physical or mental superiority, one obtains an advantage in a transaction over another who is enfeebled in mind and body, or by disease or old age, the person obtaining such advantage will be required to show that the transaction was a fair one. But such a rule can apply only to one who was present and actively concerned in bringing about the result complained of.

In addition, the rule which obtains as to transactions between the living, must be greatly modified when it comes to testamentary devises. If the will is not made with the active participation of the devisee, then the rule sought to be applied in the instruction can not obtain in any degree. Surely, one ought not to be incapable of taking a devise simply for the reason that he had been a friend of the testator, or had served him faithfully when living. On such a theory a wife or a child might be suspected of having exerted undue influence over a loving and grateful husband or father merely because he should be found to have remembered them generously in his will, and that even if the will were made with his lawyer alone, in the privacy of his chamber, as was done in this...